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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No. EB-10-LA-0238
HK Media, Inc. )
NAL/Acct. No.
Licensee of Station KFOX ) 201132900005
Torrance, California ) FRN 0020919791
Facility ID # 87242 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 27, 2011 Released: July 29, 2011
By the District Director, Los Angeles Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that HK Media, Inc. ("HK Media"), licensee of Station KFOX, in
Torrance, California, apparently willfully and repeatedly violated
section 73.3526 of the Commission's rules ("Rules") by failing to
maintain and make available for inspection a local public inspection
file at the Station KFOX main studio. We conclude that HK Media is
apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On September 22, 2010, an agent from the Enforcement Bureau's Los
Angeles Office ("Los Angeles Office") conducted an inspection at the
main studio of Station KFOX in Los Angeles, California. The agent
requested to review the station's public inspection file, however, the
station's staff, including the Operations Manager and contract
engineer, could not locate the public inspection file.
3. In response to a Letter of Inquiry issued by the Los Angeles Office,
the President of HK Media stated that the Station KFOX public file
materials were destroyed due to water damage at the station's studio
location in May 2010. HK Media acknowledged that a complete public
inspection file was not recreated until the week after the Los Angeles
agent's inspection in September 2010.
III. DISCUSSION
4. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. Section
312(f)(1) of the Act defines willful as the "conscious and deliberate
commission or omission of [any] act, irrespective of any intent to
violate" the law. The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both section
312 and 503(b) of the Act and the Commission has so interpreted the
term in the section 503(b) context. The Commission may also assess a
forfeiture for violations that are merely repeated, and not willful.
The term "repeated" means the commission or omission of such act more
than once or for more than one day.
5. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM or FM station shall maintain a public inspection file containing
the material, relating to that station, described in Section
73.3526(e) of the Rules. Section 73.3526(b)(1) of the Rules requires
that the public inspection file shall be maintained at the station's
main studio. Section 73.3526(c)(1) of the Rules specifies that the
file shall be available for public inspection at any time during
regular business hours.
6. On September 22, 2010, a Los Angeles agent attempted to review the
Station KFOX public inspection file but there was no file available
for review at the main studio location. In its LOI Response, HK Media
acknowledged that the Station KFOX public inspection had been
destroyed in May 2010 and was not recreated until after the inspection
by the Los Angeles agent. Consequently, the Station KFOX public
inspection file was unavailable to the public for a period of four
months. Accordingly, based on the evidence before us, we conclude that
HK Media apparently willfully and repeatedly violated section 73.3526
of the Rules by failing to maintain and make available the Station
KFOX public inspection file at the station's main studio.
7. Pursuant to the Commission's Forfeiture Policy Statement and section
1.80 of the Rules, the base forfeiture amount for violation of the
public file rule is $10,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that
HK Media is apparently liable for a $10,000 forfeiture.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314 and 1.80 of the Commission's Rules, HK Media, Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violations of section
73.3526 of the Rules.
9. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, HK Media, Inc. SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, HK Media, Inc. will send
electronic notification on the date said payment is made to
WR-Response@fcc.gov.
11. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Los Angeles Office, 18000 Studebaker Rd., Suite # 660, Los
Angeles, CA 90703 and include the NAL/Acct. No. referenced in the
caption. HK Media, Inc. shall also email the written response to
WR-Response@fcc.gov.
12. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to HK Media, Inc., 4525 Wilshire Blvd.,
Los Angeles, California, 90010.
FEDERAL COMMUNICATIONS COMMISSION
Nader Haghighat
District Director
Los Angeles Office
Western Region
Enforcement Bureau
47 C.F.R. S: 73.3526.
See Letter of Inquiry from Nader Haghighat, District Director, Los
Angeles Office, Western Region, Enforcement Bureau, to HK Media, Inc.,
dated March 8, 2011 ("LOI"); Response from Grant Chang, President, HK
Media, Inc., to Nader Haghighat, District Director, Los Angeles Office,
Western Region, Enforcement Bureau, dated April 8, 2011 ("LOI Response").
LOI Response at 3.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503).... As defined ... `willful' means that the licensee
knew that he was doing the act in question, regardless of whether there
was an intent to violate the law. `Repeated' means more than once, or
where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms ...").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(b)(1).
47 C.F.R. S: 73.3526(c)(1).
12 The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.3526.
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 11-1272
4
Federal Communications Commission DA 11-1272